Rozario and Australian Skills Quality Authority (Practice and procedure) - [2025] ARTA 241

Rozario and Australian Skills Quality Authority (Practice and procedure) [2025] ARTA 241 (21 March 2025)

Applicant/s:  Sumon Rozario
Respondent:  Australian Quality Skills Authority
Tribunal Number:                2024/11097

Tribunal:Mr M. Harrowell, Senior Member
Place:Sydney
Date:21 March 2025

Decision:

Order pursuant to s 32(2) Administrative Review Tribunal Act 2024, that the decision made 18 December 2024 to cancel the applicant’s qualification entitled CHC43015 - Certificate IV in Ageing Support (Qualification) is stayed pending the determination of the application for review or further order of the Tribunal, whichever is the earlier.
The preceding order is conditional upon the applicant notifying the respondent if he ceases employment with Chaffey Aged Care or Value Care or seeks additional or alternative employment in the area of aged care or in an area of employment in which he seeks to rely on the Qualification.
In the event the respondent receives notification under the preceding order, it may apply to vary or revoke the stay order.

....................[SGD]....................................................

Senior Member Harrowell

Catchwords

REGULATION AND DISCIPLINE – Cancellation of qualifications

PRACTICE AND PROCEDURE- Stay of decision pending determination of proceedings – applicable principles – Tribunal satisfied it is desirable to make an order staying or otherwise affecting the operation or implementation of the decision under review

Legislation

Administrative Review Tribunal Act 2024 (Cth)- s 32

National Vocational Education and Training Regulator Act 2011(Cth)- ss 56,57 and 58

Cases

Elmi and Australian Skills Quality Authority (Guidance and Appeals Panel) [2025] ARTA 192
Site Skills Group Pty Ltd and Australian Skills Quality Authority [2009] AATA 1870

Sydney Training Academy Pty Ltd and Australian Skills Quality Authority [2016] AATA 189

Statement of Reasons

These reasons relate to an application for a stay under s 32 of the Administrative Review Tribunal Act 2024 (Cth) (the Act). The stay is sought pending determination of these proceedings in which the applicant seeks review of a decision of the National Vocational Education and Training Regulator (Regulator) made under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act).
The applicant was a student at a college operated by Gills College Australia Pty Ltd (College). The College was registered under the NVR Act.
On 14 March 2023, the applicant obtained the following qualifications (Qualifications) which are the subject of the present dispute:
(a)CHC43015- Certificate IV in Ageing Support.
The respondent, as the relevant authority under the NVR Act, reviewed the operations of the College and decided to cancel the registration of the College because it failed to meet various requirements regarding its operation, record keeping and the assessment of students seeking qualifications through it.
Subsequently, the respondent also determined to exercise powers under ss 56 and 58 of the NVR Act, which permits the respondent to cancel qualifications or statements of attainment provided to students of the College. Relevantly, s 56(1) provides:
(1) The National VET Regulator may cancel a VET qualification or VET statement of attainment issued to a person by an NVR registered training organisation or former registered training organisation if the Regulator is satisfied on reasonable grounds that:
(a) the organisation did not provide, or arrange for another person to provide, all or part of the assessment necessary for the person to achieve the learning outcomes or competencies required for:
(i) the qualification; or
(ii) the units of competency or modules specified in the statement; or
(b) the qualification or statement was issued by the organisation:
(i) in error; or
(ii) because of a document or representation that was false or misleading, or was obtained or made in any other improper way; or
(c) it was outside the organisation’s scope of registration to issue the qualification or statement to the person; or
(d) it is appropriate, in all the circumstances, because of action the Regulator has taken, or is taking, in relation to:
(i) the VET course, or part of the VET course, to which the qualification relates; or
(ii) the organisation, in respect of the VET course, or part of the VET course, to which the qualification relates; or
(iii) part of the VET course to which the statement relates; or
(iv) the organisation, in respect of part of the VET course to which the statement relates.
By letter from its Chief Executive Officer dated 18 December 2024 (Decision), the respondent cancelled the Qualifications. The Decision is found in the bundle of documents provided by the respondent to the Tribunal pursuant to s 23 of the Act entitled “Section 23 ‘T’ Documents” (“T Documents”) at T2.
Under the heading “Reasons for decision” the Chief Executive Officer said:
Reason for the decision
ASQA’s notice to you of 26 November 2024 stated that as part of the investigation which led to the cancellation of the registration of Gills College, ASQA found evidence that the organisation did not provide the training and assessment necessary to ensure students had the skills and knowledge required to be awarded a VET qualification or statement of attainment.
Relevant findings included:
a) Gills College did not have sufficient facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment at each delivery location.
b) Gills College did not demonstrate it had a system in place to ensure all trainers and assessors were suitable qualified or experienced.
c) Gills College did not implement an assessment system that ensured assessment complied with the requirements of the relevant training package.
d) Gills College did not conduct adequate assessment or ensure that only students who have fully demonstrated competence against all training package requirements have been issued with certification and captured consistent and accurate information about students and training outcomes.
Furthermore, there was evidence that:
e) Students had been issued certification via recognition of prior leaning (RPL) although the provider denied having conducted any RPL assessment during the period of issuance.
f) Students denied they had studied with the provider at all, although the provider’s student management system said it had issued certification to the students.
g) Students completed qualifications via RPL and said they had not attended classes or undertaken a work placement and were told by the provider it was not necessary to attend classes.
Based on these findings, which were evident during the period in which you was enrolled with Gills College, ASQA is satisfied that Gills College did not provide you with the training or assessment necessary for you to achieve the learning outcomes or competencies required for the qualification(s) and/or statement(s) of attainment issued to you.
ASQA provided all students with an opportunity to respond. ASQA has considered your response including where applicable, information since Gills College issued you with your certificates.
Having done so, I have however decided to cancel the qualification(s) and/or statement(s) of attainment issued to you by Gills College based on the evidence described above. A copy of the response assessment record and a statement of reasons is attached for your reference.
I encourage you to review the former Gills Australia Pty Ltd factsheet which contains information that may assist you obtaining the appropriate qualifications via Recognition of Prior Learning
(RPL).
In addition to the reasons contained in the letter dated 18 December 2024, that letter attached a 5-page document also part of the bundle marked T2. It is a record of an assessment carried out by Mr Anthony Parletta, an assessment officer for the respondent, containing his recommendations to the Chief Executive Officer dated 9 December 2024.
Mr Parletta’s document also included a statement of reasons as following:
Summary of issues relevant to the decision
2. ASQA has cancelled the registration of Gills College because, for the purposes of s 56(1) of the NVR Act, it is satisfied that:
a) Gills College did not have sufficient facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment at each delivery location.
b) Gills College did not demonstrate it had a system in place to ensure all trainers and assessors were suitable qualified or experienced.
c) Gills College did not implement an assessment system that ensured assessment complied with the requirements of the relevant training package.
d) Gills College did not conduct adequate assessment or ensure that only students who have fully demonstrated competence against all training package requirements have been issued with certification and captured consistent and accurate information about students and training outcomes.
e) Students had been issued certification via recognition of prior leaning (RPL) although the provider denied having conducted any RPL assessment during the period of issuance.
f) Students denied they had studied with the provider at all, although the provider’s student management system said it had issued certification to the students.
g) Students completed qualifications via RPL and said they had not attended classes or undertaken a work placement and were told by the provider it was not necessary to attend classes.
3. Based on these findings, which were evident during the period in which the student undertook training with Gills College, ASQA is satisfied that Gills College did not provide the student with the training or assessment necessary for them to achieve the learning outcomes or competencies required for the qualification(s) and/or statement(s) of attainment issued.
4. ASQA provided all students with an opportunity to respond.
5. The student responded to the notice of intent which was separately considered before a decision was made.
6. Consideration of the student’s response showed that:
a) There is insufficient evidence to demonstrate that the student was provided with appropriate training and/or assessment by Gills College.
b) There is insufficient evidence to demonstrate that the student was assessed as fully meeting the requirements of the issued qualification/statement of attainment by Gills College prior to it being awarded.
c) There is insufficient evidence to demonstrate that the student has been assessed by a suitably qualified VET assessor as having acquired the requisite learning outcomes and competencies for the issued qualifications, either at the time qualifications and/or statements of attainment were issued or since.
7. Based on the overall evidence, including the student response, ASQA is satisfied that the student has not completed the training and assessment necessary for the student to achieve the requisite learning outcomes and competencies for the issued qualifications.
8. This decision reflects the risks posed to industry and the community by the person possessing VET Qualifications or Statements of Attainment for which they have not been assessed as having achieved the required learning outcomes and competencies.
It will be apparent that there are some differences in each of the documents identified as containing reasons. These differences may be relevant to the final hearing but do not need to be considered for the purpose of the present application. Suffice to say, an issue that might arise in this case is whether the decision-maker had formed the relevant level of satisfaction, on reasonable grounds, of the matters required by s 56(1) of the NVR Act. More particularly, in these review proceedings, an issue will likely be whether there are reasonable grounds to reach such level of satisfaction.
The applicant sought a review of the Decision by application lodged 30 December 2024.
That application included a request for a stay. Under the heading “Reasons for the application”, the applicant said:
The decision to cancel my certification, which is set to take effect on December 27, 2024, places me in a position where I risk losing my job and livelihood at a time when finding a new job is nearly impossible due to the time of year. The timing and impact of this decision are unjust, and I am requesting that the decision be unconditionally stayed until the review process is completed.
It does not appear that any interim stay orders have been made. Rather, the parties have filed submissions in support of their respective positions, the application for stay being listed before me on 14 March 2025.

PRINCIPLES APPLICABLE TO THE GRANT OF A STAY

As stated in s 32(1) of the Act, “[t]he making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision”.
However, s 32(2) of the Act provides:
… on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.
Subsection 32(3) of the Act permits the Tribunal to make any stay order “subject to any condition specified in the order”.
Subsection 32(7) has the following precondition to the making of any stay order:
The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless:
(a) the Tribunal has given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and
(b) the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.
As I outlined in Elmi and Australian Skills Quality Authority (Guidance and Appeals Panel)[1] (Elmi) at [27]-[32], relevant matters to be considered in determining whether to grant a stay include:
(a)The prospects of success of the application for review
(b)The consequence for the applicant of refusing a stay.
(c)The public interest.
(d)The consequences for the respondent in carrying out its functions depending on whether a stay is granted or not.
(e)Whether the application for review would be rendered nugatory if a stay were not granted.
(f)Other relevant matters.
[1] [2025] ARTA 192
As to the NVR Act, when considering the question of public interest, I noted in Elmi[2] that this legislation is protective. As such, depending on the nature of the qualification, permitting a person not properly qualified to maintain use of certificates and qualifications inappropriately awarded may pose a substantial risk to those who might rely on the person in question being suitably qualified.
[2] at [41]-[45]

EVIDENCE AND SUBMISSIONS ON THE STAY APPLICATION

The applicant filed a number of documents in support of his application. One of the numerous bundles of material were the documents attached to his email dated 2 January 2025.
That email contained the following submissions and evidence:
... I am writing to formally notify you of the decision made by ASQA on 18 December 2024, which is set to take effect on 27 December 2024, to cancel my certification – CHC43015 Certificate IV in Ageing Support (Case Number SD-0059857). This qualification was issued by Gills College Australia Pty Ltd (RTO ID 2417), trading as Elite College Australia and/or Sterling Business College (Gills College).
I believe this decision was made in error, as I was not given a fair opportunity to respond to the initial intention notice. I intend to demonstrate this during the review process and respectfully request a thorough re-evaluation of the circumstances surrounding the decision.
I have completed all required training, assessments, and work placements in accordance with the qualification requirements. Please find the following supporting documents enclosed for your review:
…Work Placement Record
During my 120-hour work placement, I adhered to all workplace rules and followed the instructions of the Bupa Workplace Supervisor, with sign-offs at the end of each shift. The enclosed work placement record confirms the successful completion of the required hours.
…Chaffey Aged Care (Rural Care Australia Ltd)
…
I commenced employment at Chaffey Aged Care on 3 April 2023 as a Casual Personal Care Assistant (Level 5 PCW) and completed all required courses and training. Please find my Statement of Service enclosed.
I joined Value Care on 8 March 2024 as a Disability Support Worker, where I completed all necessary courses and training. Please refer to the enclosed Statement of Service.
During my tenure in aged care and disability services, I have gained substantial experience and responsibility, consistently providing high-quality care in accordance with Australian Aged Care and Disability Nursing std.
…
Should the decision to revoke my qualification take effect on 27 December 2024, I will risk losing my current employment and livelihood. This decision would have a significant financial impact on me and my family, leaving us in a precarious situation. Moreover, the government would lose regular income tax revenue from my employment. Given the timing, securing alternative employment at this time of year would be extremely difficult.
The timing and impact of this decision are unfair and detrimental to my professional life. Therefore, I respectfully request that the decision be unconditionally stayed until the review process is completed to prevent further harm.
Additionally, I have already applied for an online tribunal review, and the full fees have been paid. …
The applicant also made oral submissions which included answering various questions from the Tribunal concerning his current employment and the positions he holds.
Relevantly, when read with his documents, his evidence was to the effect that he has employment with two companies. One is Chaffey Aged Care and the other is Value Care. The work he undertakes is in and around Mildura.
In relation to Chaffey Aged Care, the applicant is employed as a Personal Care Assistant. His position is recorded in relevant payslips provided to the Tribunal.
During the hearing, reference was made to the position description for this job which is contained in another document the applicant provided to the Tribunal on 13 February 2025 entitled Personal Care Assistant (“Chaffey job description”) being a document from Chaffey Aged Care setting out his job description.
It appears from answers to the Tribunal’s questions that the applicant is employed as a “qualified personal care assistant” not an “unqualified personal care assistant”. This is relevant because at page 4 of the Chaffey job description the selection criteria for this role requires the applicant to hold a Certificate IV in Ageing Support. That is, his current employment is dependent upon him holding a certificate of the type presently the subject of this review.
In oral submissions he confirmed that he might lose his job if the decision to cancel his qualifications is not stayed which would significantly impact him and his family.
In reply, the respondent filed written submissions and made oral submissions at the hearing of stay application.
On the question of prospects of success, the respondent said it was “neither necessary nor appropriate for the Tribunal to exhaustively assess the applicant’s prospects of success in considering the stay application.” However, the respondent submitted prospects were not strong.
The respondent submitted that because the College failed to provide adequate training and assessment of students (including the applicant) it followed that it was appropriate to cancel the applicant’s qualifications. This, the respondent said, was “primarily to ensure public confidence in the qualifications gained through Australia’s [Vocational and Educational Training (VET)] sector is maintained, specifically that those who hold VET qualifications have actually completed the required training and demonstrated that they have gained the requisite skills required for that qualification via the appropriate assessment”.

In making this submission, the respondent said that the material provided by the applicant in response to the respondent’s notice of intention to cancel the Qualifications and the material provided in support of the stay application did not contain any further evidence that the College in fact provided the training and assessment necessary for the applicant to achieve the learning outcomes for the certificate that he was awarded. Having said so, the respondent accepts that the applicant has not yet had an opportunity to provide further evidence, nor does he have the benefit of understanding the respondent’s position which is to be provided by way of a statement of issues.
As to the consequences if a stay is refused, the respondent submits the applicant is currently employed in two roles – one as a disability support worker (personal care assistant) with Value Care – the second with Chaffey Aged Care where he is classified as an “Aged Care Employee, Level 5, PWC 4 (Cert4)”.
Of the first position, the respondent submitted there was currently no minimum qualification requirements to work in the disability sector. The offer from Value Care dated 8 March 2024 did not require the applicant to hold any particular qualifications. As to his employment with Chaffey Aged Care, the respondent referred to an enterprise agreement which that provider has and submitted that “whilst an employee [like the applicant] is generally expected to have a relevant Certificate IV qualification, the employee may also undertake work at the Level III classification if they possess the equivalent knowledge or skills. In short, the respondent submitted at [3.17] of its written submissions that “it is not necessarily the case that the Applicant will lose his current employment if the stay is not granted”.
In making this submission, the respondent accepted that it would be for the applicant’s employer to determine whether the applicant’s employment would continue if his qualifications were cancelled, and he was required to advise his employer of this fact.
On the question of public interest, the respondent referred to the Royal Commission into Aged Care Quality and Safety and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the need to:
(a)protect vulnerable persons being those who might receive care; and
(b)provide confidence to those in need as well as the community in general that the holders of qualifications possess the minimum level of skills, knowledge and competencies required for the particular certificate.
Reference was made to the decisions of Site Skills Group Pty Ltd and Australian Skills Quality Authority[3] and Sydney Training Academy Pty Ltd and Australian Skills Quality Authority[4] concerning the objects of the NVR Act and the public interest issues arising in connection with maintaining compliance by registered training organisations with their obligations under that legislation.
[3] [2009] AATA 1870 at [87].
[4] [2016] AATA 189 at [28(c)]
Next, respondent submitted that public confidence would be lost if the stay was granted in circumstances where the respondent had cancelled the College’s registration.
Finally, the respondent said that the review would not be rendered nugatory or pointless if a stay was not granted. Here, the respondent said that the applicant “has not demonstrated that the ability to continue the proceedings would be impacted by the refusal of the stay, or that the proceedings would be rendered nugatory.” In this regard it is for the applicant to demonstrate that the stay is required, the respondent referring to the decision of McNamara and Secretary, Department of Social Services.[5]
[5] [2016] AATA 189 at [12]

CONSIDERATION

As noted above, an order may be made staying or otherwise affecting the operation or implementation of a decision the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.
Success for the applicant in the present case may result in the Decision being set aside and any adverse consequences to his present or future employment by reason of cancellation of his qualifications thereby avoided. As such, if a stay is not granted pending determination of the review application and his employment is lost, the review may, in part, be rendered ineffective.
On the other hand, as submitted by the respondent, there are a number of risks that might be posed to those for whom the applicant is caring and the public if a stay is granted and the applicant is able to rely on qualifications improperly obtained in circumstances where he was not adequately trained.
These matters, together with the other factors to which I have referred above require evaluation in determining whether a stay is desirable in the present case.
In doing so, regard must be had to ss 56 and 58 of the NVR Act, in particular the requirement for the National VET Regulator to be satisfied on reasonable grounds that one or all of the circumstances set out in subsections 56(1)(a)-(d) exist if the powers under those sections are to be exercised.
In my view, on the material presently available to the Tribunal, the application for review could not be described as unmeritorious or weak.
As will be evident from the Decision and the reasons referred to therein, a number of issues have been identified by the respondent in connection with the College conducting its training programs. However, some of these issues, which might be described as “generic”, do not appear to apply to the applicant.
For example, in respect of reasons (e)-(g) of the Decision, the documents provided by the applicant suggest the applicant in fact attended the College and/or undertook training programs (such as work placement at the Bupa Villages and Aged Care centre in Mildura) associated with the qualification awarded: see e.g. email from College to applicant dated 16 February 2023 regarding requirements for undertaking work placement found in applicant’s bundle provided to the Tribunal on 2 February 2025.
I should note at this point, that despite the respondent’s obligations under s 23 of the Act, the documents provided by the respondent to the Tribunal do not contain the decision made in respect of the College (which is relevant to the decision made in connection with the applicant). Further, the Tribunal has not been provided with any student records kept by the College relating to the applicant concerning his attendance, training, coursework or curriculum relevant to the Qualifications, what enquiries were made by the respondent with the College in connection with those matters and/or evidence of what records exist.
Directions have been made to ensure compliance by the respondent with its obligations under s 23 of the Act. However, the limited material which the Tribunal has so far received from the parties provides some support for the view that the original decision made in connection with the applicant is not correct.
On the issue of consequences for the applicant if the stay is refused, the applicant gave evidence that the cancellation may affect his current employment, a view supported by the Position Description document for his position at Chaffey Aged Care where he holds the position of a personal care assistant. In this regard, the Key Selection Criteria in that document shows that a Qualified Personal Care Assistant is required to hold Certificate IV in Ageing Support being the qualification the subject of dispute in these proceedings: see document entitled Personal Care Assistant at page 4, provided to the Tribunal on 13 February 2025.
While the respondent referred to an Enterprise Agreement relating to Chaffey Aged Care, and submitted that formal qualifications were not required, I am not persuaded that the employment of the applicant will not be adversely affected if the decision to cancel his qualification is not stayed. Indeed, in submissions, the respondent appeared to accept this as a possibility.
As to the question of public interest, I do not accept that the risks identified by the respondent make the granting of a stay inappropriate.
The applicant has been working as a Personal Care Assistant in Mildura for some time. For example, he commenced with Chaffey Aged Care on 3 April 2023. There is no evidence to suggest he has performed his various roles in an unsatisfactory manner, that he does not possess the relevant knowledge to do so or that he poses any risk to those under his care or the public in general.
In these circumstances, I have formed the view that it is desirable to grant a stay pending a determination of the review application.
Having said so, I raised with the parties the possibility that any stay should be made on condition that the appropriateness of a stay might be reviewed if the applicant were to change his employment.
The applicant said that the stay should be unconditional.
I do not accept an unconditional stay is necessary or appropriate.
Rather, it seems to me that the stay should be on condition that the applicant notifies the respondent if he wishes to change employment. In this event, the respondent can apply to the Tribunal to discharge the stay should the respondent consider such an application is warranted.
My reasons for this view are as follows:
(a)The applicant has not suggested he will change jobs in the near future. Indeed, the effect of his evidence is there are limited employment opportunities in Mildura such that if he was to lose his job because a stay was not granted, he would be unable to find alternative employment.
(b)On the other hand, a requirement that the applicant notify the respondent of any change of employment will serve as a means to protect the public. For example, if the reason for him changing employment was as a result of unsatisfactory performance of his present roles, this may alter the public interest considerations, particularly those to which the Tribunal is required to have regard under s 32(7) of the Act.
For these reasons, the order for stay will be on condition that the applicant notifies the respondent should he seek to obtain additional or alternative employment in the area of aged care or elsewhere.

DECISION

The Tribunal makes the following orders:
(a)Order pursuant to s 32(2) Administrative Review Tribunal Act 2024, that the decision made 18 December 2024 to cancel the applicant’s qualification entitled CHC43015 - Certificate IV in Ageing Support (Qualification) is stayed pending the determination of the application for review or further order of the Tribunal, whichever is the earlier.
(b)The preceding order is conditional upon the applicant notifying the respondent if he ceases employment with Chaffey Aged Care or Value Care or seeks additional or alternative employment in the area of aged care or in an area of employment in which he seeks to rely on the Qualification.
(c)In the event the respondent receives notification under the preceding order, it may apply to vary or revoke the stay order.

Date(s) of hearing:	14 March 2025
Applicant:	In person (self-represented)
Solicitors for the Respondent:	Gabrielle Ho, Clayton Utz